H-4 Spouse Status After an H-1B Spouse Dies: 204(l) Relief

The death of an H‑1B worker is a personal tragedy, and it also creates an immediate legal crisis for the H‑4 spouse and children in the United States. Because H‑4 status is fully dependent on the H‑1B principal, immigration status for the family usually ends the moment the H‑1B spouse passes away. There is no automatic grace period in the law for an H‑4 spouse in this situation, so quick, informed action is essential.

At the same time, U.S. immigration law does offer a narrow but powerful safety net in some cases. If the deceased worker had a pending or approved employment‑based I‑140 petition, a section of the law called INA § 204(l) may let the surviving spouse and children keep the green card process alive. This guide walks through what happens day by day, what choices exist, and how to plan a path forward.

First days after the H‑1B spouse’s death: status and timing

Legally, H‑4 and H‑1B status end when the H‑1B principal dies, even if the I‑94 cards for the family show a later date. That means the I‑94 record is no longer valid, and every day that passes can count as unlawful presence unless a new step is taken.

USCIS does not provide a formal 60‑day grace period for dependents after a death (unlike the grace period sometimes provided to an H‑1B worker after job loss). In practice, many lawyers advise that an H‑4 spouse should either:

• Leave the country, or
• File for a new status within about 7–10 days of the death,

unless they qualify for protection under INA § 204(l).

Important: There is no automatic nonimmigrant status or work authorization created by INA § 204(l). Prompt action is critical to avoid accrual of unlawful presence.

Checking for an existing or pending I‑140 petition

The first legal question is whether the deceased H‑1B worker ever had an employment‑based I‑140 petition filed on their behalf. The I‑140 is the key employer-sponsored petition for a green card.

If an I‑140 petition is pending or approved, INA § 204(l) may allow USCIS to keep the petition “alive” for the benefit of the surviving family even though the original worker has died. USCIS explains this relief on its “Death of Petitioner or Principal Beneficiary” page, available through the official website at https://www.uscis.gov.

Who can use INA § 204(l) after an H‑1B death

Under INA § 204(l), certain family members may still qualify for permanent residence if they:

• Were living in the United States when the death occurred, and
• Continue to live in the United States when they ask for relief.

The rule can cover a surviving H‑4 spouse and any children who were listed as derivative beneficiaries on the I‑140 petition or later green card filings.

To qualify, the family must meet four basic points:

• They lived in the United States when the H‑1B worker died.
• They have continued to live in the United States since that time.
• They were listed as a beneficiary or derivative on the I‑140 petition or related case.
• USCIS chooses to use its discretion to approve the request.

Step‑by‑step: requesting reinstatement of the I‑140 petition

If the above conditions are met, the surviving H‑4 spouse (typically through an attorney) can ask USCIS to reinstate or continue the I‑140 petition under INA § 204(l). There is no filing fee for this request.

The usual steps include:

1. Confirm the I‑140 details.
   The attorney checks USCIS receipts or approval notices to confirm the employer, category, and priority date of the I‑140 petition.

2. Collect proof of residence.
   Gather documents showing residence in the U.S. at the time of death and continuously thereafter (leases, utility bills, tax returns, school records, etc.).

3. Obtain the death certificate.
   Provide a copy of the H‑1B worker’s death certificate to attach to the INA § 204(l) request.

4. Prepare a cover letter.
   The attorney writes a detailed letter explaining the facts, the family’s U.S. history, and why INA § 204(l) applies.

5. Add financial support evidence if needed.
   In some cases, a new financial sponsor may need to sign Form I‑864, Affidavit of Support, especially when filing subsequent adjustment of status applications.

6. Send the request to the correct USCIS office.
   Mail the package to the office that holds the I‑140 petition or the related adjustment case.

USCIS may take several months to decide whether to grant INA § 204(l) relief and keep the I‑140 petition valid. During this waiting period, the surviving family must manage their day‑to‑day status because INA § 204(l) does not itself provide nonimmigrant status or work authorization.

Staying in lawful status while waiting for a priority date

An H‑4 spouse whose status ended with the H‑1B death often needs to change to another visa category to remain in the U.S. while waiting for a green card priority date. Possible options include:

• Student status (F‑1),
• Independent work status if eligible under their own qualifications, or
• Another family‑based nonimmigrant status, depending on personal eligibility.

Common filing routes:

• Use Form I‑539 to request a change of status inside the country.
• Use Form I‑129 if a new employer will petition for a work visa on the applicant’s behalf.

Official instructions and editions for these forms are on the USCIS Forms page at https://www.uscis.gov/forms.

Moving to adjustment of status after INA § 204(l) relief

Once USCIS agrees to keep the I‑140 petition valid under INA § 204(l) and the priority date becomes current, the surviving relatives can usually apply for permanent residence via adjustment of status using Form I‑485, Application to Register Permanent Residence or Adjust Status.

• Form I‑485 is available on USCIS’s page for Form I‑485.
• The surviving H‑4 spouse and each child generally file separate I‑485 applications with supporting documents and fees, following current USCIS instructions.
• At every stage, USCIS must be clearly informed that the original H‑1B principal is deceased and that the case proceeds under INA § 204(l).

What happens to children in H‑4 status

Children in H‑4 status lose their dependent status at the same time as the surviving spouse when the H‑1B parent dies.

Options for children include:

• Becoming dependents under the surviving parent’s new nonimmigrant status (usually via separate Form I‑539 filings).
• Being covered as derivative beneficiaries under INA § 204(l) if an approved or pending I‑140 exists and they meet the same residence requirements.

Monitor each child’s age carefully. Long processing times can lead to “aging out” under normal rules, although the Child Status Protection Act (CSPA) may provide protection in some employment‑based cases.

Working with an immigration attorney during a crisis

Because these situations combine grief, tight timelines, and complex law, most families should speak with an experienced immigration attorney as soon as possible after the death.

Experienced attorneys can help to:

• Plan immediate steps to preserve lawful status,
• File change‑of‑status applications, and
• Prepare the detailed INA § 204(l) request to keep the I‑140 petition valid.

For example, Graham Adair Law Firm notes that people in this position should seek legal advice immediately so options are not lost through delays, and offers consultations for case‑specific planning. According to analysis by VisaVerge.com, families facing the loss of an H‑1B worker often feel they must leave the country at once, but a careful review of INA § 204(l), the I‑140 petition history, and possible new statuses can sometimes reveal a lawful and stable way to remain in the United States for many grieving families.

Key takeaway: Act quickly, gather proof of U.S. residence and the deceased worker’s I‑140 history, and consult an experienced immigration attorney to evaluate INA § 204(l) relief and options to maintain lawful status.